Hobart v. Young
| Decision Date | 08 March 1891 |
| Citation | 21 A. 612,63 Vt. 363 |
| Parties | JOHN W. HOBART v. SUMNER YOUNG |
| Court | Vermont Supreme Court |
JANUARY TERM, 1891
Judgment affirmed.
Wilson & Hall, for the defendant.
As to the exclusion of the question put to Somers on cross-examination about his coming on a pass, it is enough to say that no offer was made to connect the plaintiff with furnishing him a pass if he came on one. Without this, the plaintiff could not be affected by the fact that the witness came on a pass.
The reasons urged to show error in not allowing defendant's witnesses, Clark, Darby, and Fairfield, to testify their offers for the horses, come pretty much to the same point-relevancy to show soundness. All these witnesses had carefully examined the horses as to soundness, and Clark testified that they were sound, and defendant's counsel say that the others did, and we think that is fairly inferable from the exceptions. The defendant, therefore, had the full benefit of their testimony on that subject; and the attempt to prove their offers was but seeking to have them give supposed emphasis to their testimony by stating, in effect, that they felt certain enough that the horses were sound to make the offers for them without requiring a warranty. It was, at best, an indirect way of trying to get at what had already been gotten at directly. And certainly the offers standing alone would not have tended to show soundness; for the witnesses might have considered the horses unsound and yet have thought them worth what they offered for them, and so have been willing to buy them without a warranty.
It is claimed that in charging on the aspect of warranty, the court assumed that the horses were unsound at the time of sale, and did not give the jury to understand that it must find unsoundness then in order to warrant recovery on that ground. It is true that the court said nothing in that part of its charge about finding unsoundness; but in charging on the aspect of deceit, the court expressly told the jury that the burden of proving deceit was on the plaintiff, and that before they could find for him on that ground they must be convinced by a fair balance of evidence that the horse was unsound at the time; and in this connection the court charged that the same rule of evidence applied to the other branch of the case. We think it clear that the jury was not left to suppose that there could be a recovery on the warranty without finding a breach.
It is conceded that the court correctly charged the law of warranty, but claimed that it did not apply it to either branch of the case, for that it did not tell the jury that in order to make the defendant's representations binding upon him, he must have made them with the view of having the plaintiff receive them as true, and that the plaintiff must have made the purchase relying upon them. As to the aspect of warranty, certainly, this claim has no foundation, for in connection with the proposition of law conceded to contain all the elements of a warranty, the court expressly told the jury that they must make that rule their guide in applying the evidence, and determine whether what they found was said and done amounted to what the law calls a warranty. And again, in re-stating the questions at the close of the charge, the jury were told, among other things, that they were called upon to determine whether there was a warranty under the law laid down to them, defining what a warranty is in law. All this was quite sufficient.
As to the aspect of deceit, the jury were told that they must determine from the evidence whether the horse had a ring-bone and whether defendant knew it; whether defendant practiced a deceit upon the plaintiff in palming the horses off onto him with that defect on one of them; whether there was any such deceit practiced in the sale of the horses as the evidence tended to show, and as must be shown in order to make the defendant liable on that ground. We think this was sufficient to give the jury to understand that they must find, both that the defendant intended to mislead plaintiff by his representations and that plaintiff was in fact misled by them, before they could make the defendant liable on this branch of the case. The language of the court imports an intentional deceit and palming off. To palm off means, to impose by fraud; to put off by unfair means. The language also imports that plaintiff must have been deceived and cheated by the misrepresentations, which he could not have been had he not relied upon them.
It was not error to submit to the jury to find whether there was a verbal warranty on the 2d of June, the last time plaintiff saw the horses before the purchase. Although he did not buy them that day, the price was then agreed upon at which he could have them. The testimony on the part of the plaintiff admitted without objection, presented two aspects as to warranty, namely, that of a verbal warranty on June 2d, and that of a written warranty on June 5th. The defendant denied both, and said that the bill of sale did not contain a warranty, and that if it did, he was not bound by it because of the circumstances in which he signed the bill. No objection was made to the admission of the parol evidence as varying the written contract. In this posture of the case it was the duty of the court to submit both aspects of that question; for it is not necessary that representations, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that they should be made during the course of the negotiations that lead to the bargain, and should then enter into the bargain as a part of it. Wilmot v Hurd, 11 Wend. 584; 2 Benj. Sales, § 929. (Corbin's Ed.)
An important question is, whether the words, "sound and kind," contained in the bill of sale, constitute an express warranty as matter of law.
The law of warranty has undergone much change since Chandelor v. Lopus, Cro. Jac. 4, decided in the Exchequer Chamber in 1803. It was there held that an affirmation that the thing sold was a bezoar-stone was no warranty; for it is said, every one in selling his wares will affirm that they are good, or that the horse he sells is sound, yet, if he does not warrant them to be so, it is no cause of action.
But latterly courts have manifested a strong disposition to construe liberally in favor of the purchaser what the seller affirms about the kind and quality of his goods, and have been disposed to treat such affirmations as warranties when the language will bear that construction, and it is fairly inferable that the purchaser so understood it. Stone v. Denny, 45 Mass. 151; Hawkins v. Pemberton, 51 N.Y. 198. And now any affirmation as to the kind or quality of the thing sold, not uttered as matter of commendation, opinion, nor belief, made by the seller pending the treaty of sale, for the purpose of assuring the purchaser of the truth of the affirmation and of inducing him to make the purchase, if so received and relied upon by the purchaser, is deemed to be an express warranty. And in case of oral contracts, it is the province of the jury to decide, in view of all the circumstances attending the transaction, whether such a warranty exists or not. Foster v. Caldwell's Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Shippen v. Bowen, 122 U.S. 575.
But when the contract is in writing, it is for the court to construe it, and to decide whether it contains a warranty or not. Wason v. Rowe, 16 Vt. 525. And by the great weight of recent authority, positive statements in instruments evidencing contracts of sale descriptive of the kind, or assertive of the quality and condition, of the thing sold, are treated as a part of the contract and regarded as warranties, if the language is reasonably susceptible of that construction and it...
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